Simmons v. State , 107 Tex. Crim. 504 ( 1927 )

Conviction of murder, punishment fixed at death.

Frank Usry was shot and killed on the night of August 20, 1924. The state relied chiefly on the confession made by appellant, to establish that appellant and one Briscoe killed Usry in the perpetration of the crime of robbery. We discuss the various questions raised by appellant in the order in which the bills of exception appear in the transcript.

Those matters appearing in bills Nos. 1, 2 and 3 all relate to and are based on the legality of the filling of the jury wheel in Bexar County after this court's decision in Atwood v. State, 257 S.W. 573. The exact questions raised were before us and were discussed and decided adversely to the contention now made in the case of Matthew Briscoe v. State, No. 10345, opinion handed down February 16, 1927.

Bills of exception Nos. 4, 5 and 6 are in question and answer form, which is contrary to the statutory mandate, and would ordinarily prevent their consideration. However, in cases where the extreme penalty of the law has been inflicted we are not inclined to strict adherence to this rule. We have examined each of said bills and perceive no error in the matters complained of. Nor do we find anything in any of them deemed worthy of discussion.

Appellant took issue with the state as to the voluntary character of the confession claimed to have been made by him. The learned trial judge allowed evidence on this point and submitted the issue to the jury. This was proper. Williams v. State, 225 S.W. 177. We cannot say that the evidence does not support the conclusion that such confession was voluntary. On its face the written document complied with the statutory requirements, and a number of witnesses for the state testified denying appellant's claim that there was any coercion, threats or other matters surrounding or preceding the taking of said confession, which would prevent its being freely and voluntarily made.

The testimony as to the finding in a pump-house where Matthew Briscoe worked, of a 32-20 pistol, and the introduction of said pistol in evidence, was not error. In the confession of appellant he said Briscoe had, and used, such a pistol on the occasion of the homicide. A 32-20 bullet was found in the body of deceased.

This is not a case of circumstantial evidence. The confession of appellant that he and Briscoe were acting together in the robbery of Usry when Briscoe shot the latter, takes the case out of such category.

We find nothing in the record remotely tending to raise the issue of manslaughter. If the facts stated in the confession be true, appellant and Briscoe were robbing deceased who attempted resistance while Briscoe was going through his pockets, and Briscoe shot him. This does not suggest any manslaughter passion. Mercersmith v. State, 8 Tex.Crim. App. 211; Isaacs v. State, 36 Tex.Crim. Rep.. When parties go out for the purpose of robbing another and while so engaged one of them kills the party being robbed, in such fashion as to make him guilty of murder, it is the act of both, and the other is also guilty of murder. Kirby v. State, 23 Tex.Crim. App. 165; Bowers v. State, 24 Tex.Crim. App. 542.

Appellant complains that the charge did not tell the jury that the confession of the accused would not be sufficient to warrant conviction, unless there were other facts which, independent of such confession, showed his connection with the crime. There being no question but that the proof from sources other than appellant's confession, established the death of Usry as resulting from the criminal agency of some person other than deceased — the confession would be sufficient to show appellant's guilty connection with the homicide. Lawson v. State, 96 Tex.Crim. Rep.; Dyer v. State, 96 Tex. Crim. 301; Gandy v. State, 99 Tex.Crim. Rep.; Aven v. State, 95 Tex.Crim. Rep..

The trial court properly told the jury, in submitting to them the question as to whether the confession was freely made, that unless they believed beyond a reasonable doubt that such confession was made voluntarily, and that the accused was warned that he did not have to make any statement at all, and that if he did make same it might be used in evidence against him on his trial — the jury could not consider such confession for any purpose.

We have tried to give this case the same degree of care and caution which we hope characterizes our investigation of all questions appearing in death penalty cases, as well as others, but finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.